JOHNSTON & PRITCHARD - [2014] FCCA 1996

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHNSTON & PRITCHARD

[2014] FCCA 1996

Catchwords:
FAMILY LAW – Parenting – previous hearing and subsequent application for variation – has there been a significant or substantial change in circumstances – consideration of the law – application to the evidence – application for variation of parenting orders dismissed – continuation of operation of previous orders precluding viewing of subpoenaed documents – preclusion of further proceedings without leave of court – costs.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 64, 64B, 65DA(2), 117(1), (2), (2A), 118

Family Law Reform Act 1995 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Johnston & Pritchard [2013] FCCA 2418
Poisat & Poisat [2014] FamCAFC 128
Miller & Harrington (2008) FLC 93-383
Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990)
SPS & PLS [2008] FamCAFC 16
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Errington & Samuels & Ors [2011] FamCA 98
Reid & Lynch [2010] FamCAFC 184
CDJ v VAJ (1998) 197 CLR 172 at 118
Freeman & Freeman (1987) FLC 91-857
McManus v McManus [1969] 13 FLR 449 at 455
Marsden v Winch (2009) 42 Fam LR 1
Langham and Langham (1981) FLC 91-014
Bennett and Bennett (1991) FLC 92-191
In the Marriage of McEnearney (1980) FLC 90-866
In the Marriage of F & N (1987) 11 Fam LR 664
In the Marriage of D & Y (1995) 18 Fam LR 662
In the Marriage of Newling & Mole (1987) 11 Fam LR 974 at 976-7
In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 172

Applicant:

MS JOHNSTON

Respondent:

MR PRITCHARD

File Number:

SYC 4591 of 2008

Judgment of:

Judge Coker

Hearing date:

18 July 2014

Date of Last Submission:

18 July 2014

Delivered at:

Townsville

Delivered on:

23 July 2014

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Ladopoulos

Solicitors for the Respondent:

Paltos Briggs Family Lawyers

ORDERS

That the Mother’s Initiating Application filed 31 January 2014 be dismissed.
That the Mother be restrained from initiating further proceedings in relation to the parenting of the child, X born (omitted) 2006, without leave of this Court previously given.
That the Mother pay the Father’s costs of and incidental to these proceedings as may be agreed between the parties and, failing agreement, as follows:
(a)Within 28 days of there being an indication that agreement cannot be reached that submissions on the quantum of costs be filed by the Father and served on the Mother;
(b)The Mother file and serve submissions in response within 14 days thereafter; and
(c)The matter of costs be determined in Chambers.

IT IS NOTED that publication of this judgment under the pseudonym Johnston & Pritchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

SYC 4591 of 2008

MS JOHNSTON

Applicant

And

MR PRITCHARD

Respondent

REASONS FOR JUDGMENT

On 12 October 2011, Federal Magistrate Walker, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JOHNSTON & PRITCHARD

Details

AGLC: Johnston and Pritchard [2014] FCCA 1996
Case: [2014] FCCA 1996
Decision Date: 23 July 2014

CaseChat Overview and Summary

In the matter of *Johnston & Pritchard*, heard by Judge Coker, the dispute concerned parenting arrangements for a child, X, born in 2006. The Mother had filed an Initiating Application on 31 January 2014, which the Father opposed.

The central legal issues before the Court were whether the Mother's application for parenting orders should be dismissed and whether the Mother should be restrained from initiating further proceedings concerning the child's parenting without prior leave of the Court. The Court was also required to determine the Father's costs of the proceedings.

Judge Coker dismissed the Mother's Initiating Application. The Court reasoned that it was appropriate to restrain the Mother from initiating further proceedings without leave, indicating a pattern of litigation that was no longer in the child's best interests. The Court ordered that the Mother pay the Father's costs of and incidental to the proceedings, with a detailed process outlined for the assessment of those costs should the parties be unable to agree on the quantum.

Orders

Orders of the court

That the Mother’s Initiating Application filed 31 January 2014 be dismissed.

That the Mother be restrained from initiating further proceedings in relation to the parenting of the child, X born (omitted) 2006, without leave of this Court previously given.

That the Mother pay the Father’s costs of and incidental to these proceedings as may be agreed between the parties and, failing agreement, as follows:

(a) Within 28 days of there being an indication that agreement cannot be reached that submissions on the quantum of costs be filed by the Father and served on the Mother;

(b) The Mother file and serve submissions in response within 14 days thereafter; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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